Justice Scalia as campaign finance reform champion

Posted Tue, May 4th, 2010 10:10 am by Tom Goldstein

In the wake of the Supreme Court's Citizens Uniteddecision, supporters of campaign finance reform, with the vocal support of the President, have considered additional regulatory measures. The most prominent legislative proposal is the DISCLOSE Act, which is summarized here.

Title II of the DISCLOSE Act governs disclosure by corporations, unions, and political committees of advertising of most substantial campaign advertising. Several provisions are most noteworthy. Donors who give more than $1,000 must be disclosed. The head of the organization must personally state in the advertisement that s/he "approves the message." The top funder of an advertisement must state her/his approval, and the top five donors to the organization must be disclosed. In addition, under Title III, expenditures must be disclosed to shareholders and members.

Debate over such proposals will inevitably raise the question whether their disclosure provisions violate the First Amendment because they are, in the view of some, a substantial burden on free expression and are intended to deter the speech that the Citizens United decision deems constitutionally protected.

In the past, the Supreme Court has indicated that certain disclosure requirements are lawful. For example, the famous Buckley v. Valeo decision upheld disclosure requirements, while recognizing the possibility that they could be challenged in individual cases. More recently, Buckley v. American Constitutional Law Foundation upheld a requirement that petition circulators provide identifying information.

But those decisions do not definitively hold that all disclosure requirements are lawful, absent extraordinary circumstances. So the question of the constitutionality of measures like the DISCLOSE Act is a legitimate one under existing precedent.

In the wake of the oral argument in Doe v. Reed, however, it seems clear to me that the Supreme Court would uphold disclosure provisions like those set forth in the DISCLOSE Act, at least as applied to the expenditures by corporations and unions that were at issue in Citizens United.

I start from the premise that four members of the Court "“ the Citizens United dissenters "“ will easily vote to uphold the disclosure requirements based on their firmly held view that the expenditures and advertisements at issue could be banned outright. I don't see any reason to believe that any of those Justices would vote to uphold a ban on the expression but vote to invalidate the less burdensome regime of disclosure.

Four votes at the Supreme Court obviously doesn't take you very far. But the Doe v. Reed argument identified an extremely strong fifth vote: Justice Scalia. In that argument, Justice Scalia expressed the strong view that disclosure requirements do not implicate significant First Amendment concerns. To the concern that disclosure could deter expression, Justice Scalia responded, "[T]he fact is that running a democracy takes a certain amount of civic courage."

Justice Scalia's comments in the Doe argument echo his prior dissent in McIntyre v. Ohio Elections Commission, in which he wrote that a disclosure requirement "forbids the expression of no idea, but merely requires identification of the speaker when the idea is uttered in the electoral context. It is at the periphery of the First Amendment . . . ." And Justice Scalia explained that an interest in the integrity of the electoral process would suffice to justify that burden.

Justice Scalia is also a strong adherent to his convictions on such constitutional questions. Though he absolutely believes in the constitutional right recognized in Citizens United to participate in the elections through the expenditures at issue in that case, by his nature he would find no inconsistency in the equally strong conviction that a disclosure regime is perfectly fine. He is interested in the principle, not the result.

Merits Case Pages and Archives

The court issued additional orders from the December 2 conference on Monday. The court did not grant any new cases or call for the views of the solicitor general in any cases. On Tuesday, the court released its opinions in three cases. The court also heard oral arguments on Monday, Tuesday and Wednesday. The calendar for the December sitting is available on the court's website. On Friday the justices will meet for their December 9 conference; our list of "petitions to watch" for that conference is available here.

Major Cases

Gloucester County School Board v. G.G.(1) Whether courts should extend deference to an unpublished agency letter that, among other things, does not carry the force of law and was adopted in the context of the very dispute in which deference is sought; and (2) whether, with or without deference to the agency, the Department of Education's specific interpretation of Title IX and 34 C.F.R. § 106.33, which provides that a funding recipient providing sex-separated facilities must “generally treat transgender students consistent with their gender identity,” should be given effect.

Bank of America Corp. v. City of Miami(1) Whether, by limiting suit to “aggrieved person[s],” Congress required that a Fair Housing Act plaintiff plead more than just Article III injury-in-fact; and (2) whether proximate cause requires more than just the possibility that a defendant could have foreseen that the remote plaintiff might ultimately lose money through some theoretical chain of contingencies.

Moore v. Texas(1) Whether it violates the Eighth Amendment and this Court’s decisions in Hall v. Florida and Atkins v. Virginia to prohibit the use of current medical standards on intellectual disability, and require the use of outdated medical standards, in determining whether an individual may be executed.

Pena-Rodriguez v. ColoradoWhether a no-impeachment rule constitutionally may bar evidence of racial bias offered to prove a violation of the Sixth Amendment right to an impartial jury.

Conference of December 9, 2016

FTS USA, LLC v. Monroe (1) Whether the Fair Labor Standards Act and the Due Process Clause permit a collective action to be certified and tried to verdict based on testimony from a small subset of the putative plaintiffs, without either any statistical or other similarly reliable showing that the experiences of those who testified are typical and can reliably be extrapolated to the entire class, or a jury finding that the testifying witnesses are representative of the absent plaintiffs; and (2) whether the procedure for determining damages upheld by the Sixth Circuit, in which the district court unilaterally determined damages without any jury finding, violates the Seventh Amendment.

Overton v. United States Whether, consistent with this Court's Brady v. Maryland jurisprudence, a court may require a defendant to demonstrate that suppressed evidence “would have led the jury to doubt virtually everything” about the government's case in order to establish that the evidence is material.

Turner v. United States (1) Whether, under Brady v. Maryland, courts may consider information that arises after trial in determining the materiality of suppressed evidence; and (2) whether, in a case where no physical evidence inculpated petitioners, the prosecution's suppression of information that included the identification of a plausible alternative perpetrator violated petitioners' due process rights under Brady.